I concur solely on the ground that Grant Lindsey, Jr., was not a “legally adopted child” within the meaning of art. 7118,. Class A, V.A.C.S.
It is conceded by appellee that Grant Lindsey, Jr. has not been adopted by any “statutory process.” This, to my mind,, settles the issue. I believe that to be “legally adopted” requires a statutory adoption.
In Sweatman v. Bathrick, 17 S.D. 138, 95 N.W. 422, 424, the Court in considering the: dedication of a street said:
“ * * * it is evident from the language used that the learned circuit court was referring to legal dedication; that is, dedication provided for *399by statute. It will be noticed the language used by the court is, ‘was never legally dedicated to the public by the owners thereof.’ A common-law dedication (that is, a dedication inferred from acts of the parties) is not usually designated as a legal dedication. The dedication in such cases arises by reason of estoppel.”
To the same effect is State v. Siegel, 54 Wis. 86, 11 N.W. 435.
In People v. Mancuso, 255 N.Y. 463, 175 N.E. 177, 76 A.L.R. 514, Court of Appeals New York, Justice Cardozo, it was held that the word “Legally” should be interpreted as referring to the statutes of the State.
Our own courts are in accord with the principle of these decisions. In Carney v. Southwestern Motor Transport, Inc., 153 Tex. 267, 267 S.W.2d 802, 804, the Court said:
“When the Legislature provided that if a business is to come within the terms of Clause (3) it must be a ‘public utility* ‘as defined by the laws of Texas’, it intended for the Secretary of State to include under Clause (3) only those ‘‘public utilities’ set forth in statutory enactments. Had the Legislature intended this Clause (3) to include ‘a business affected with a public interest’ it could easily have said so. Its failure so to do convinces us that such test is not the true test for determining if a business pays a tax under Clause (3). Only those businesses which the Legislature has defined as ‘public utility’ are entitled to pay the tax under Clause (3).”
In Sommers v. Doersam, 115 Ohio St. 139, 152 N.E. 387, 389, Supreme Court of Ohio, the Court in considering a devise in a will conditioned that the devisee remained unmarried until her death and has “legally ■adopted a child” had this to say:
“The expression ‘legally adopted’ means in accordance with the laws of the state in force and effect at the time of the execution of the will. These matters are, of course, statutory, as adoption was unknown to the common law of England; * * *. His use of the words ‘legally adopted’ indicates his desire that any adoption made by his widow should be in accordance with the law of the land.”
More directly in point is the Iowa Supreme Court case of Wooster v. Iowa State Tax Commission, 230 Iowa 797, 298 N.W. 922, 923, 141 A.L.R. 1298, where the Court in construing an inheritance tax statute giving preferred status to a “legally adopted child” held a child adopted by estoppel is not within such classification saying:
“Appellee argues that the state is in such privity with Delia B. Wooster as to be bound by the estoppel against her. In support of this contention it is said the state allows the party to fix the status of the child and should be bound by the status so fixed by its authority. With this statement we do not agree. The state, through its legislative enactments, allows the status of an "adopted child to be fixed by one method only, to wit, by statutory adoption. When such status has been thus fixed the legally adopted child becomes entitled to the exemption and classification provided by statute for property passing to a legally adopted child. Obviously, when a party fails to take the steps required by the state to effectuate a legal adoption the estoppel against said party resulting from such noncompliance with the statute does not bar the state from standing upon the facts as they actually exist in making classifications for inheritance tax purposes.” '
Appellee cites Sec. 3(b), 40 and 410 of the Texas Probate Code, V.A.T.S. These provisions became effective January 1, 1956. The decedent, Grant Lindsey, died August 28, 1955.
Section 3(b) “When used in this Code” defines a child as including “an adopted *400child, whether adopted by any existing or former statutory procedure or by acts of estoppel.”
This definition is new. It was not effective when decedent died. It does not purport to and in my opinion it does not repeal nor amend art. 7118, Class A.
Sec. 40 of the Code provides, in part, that “for purposes of inheritance under the laws of descent and distribution, an adopted child shall be regarded as the child of the parent or parents by adoption” and Sec. 410 prevents the closing of an estate before all inheritance taxes have been paid.
These sections have no bearing on the construction of art. 7118, Class A, supra.
The Legislature was not required to extend the benefits of an “A” Classification to adopted children and in doing so it had the right to restrict its application to those adopted in accordance with its statutes. This protective provision was and is essential to prevent the avoidance of taxes based on claims of adoption resting in parol and as to which the State, in most instances, is powerless to refute.
I have assumed, but not decided, that Grant Lindsey, Jr. was the adopted son of Grant Lindsey by estoppel.